EMMANUEL BEKEE & ORS V. FRIDAY EBOM BEKEE
(2012)LCN/5736(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of December, 2012
CA/PH/110/2011
RATIO
WORDS AND PHRASES: MEANING OF PUBLICATION
Publication means the act of making a defamatory statement known to any person or persons other than the Plaintiff himself. It is not required that there should be any publication in the popular sense of making a statement public. A private and confidential communication to a single individual is sufficient. Also it need not be published in the sense of being written or printed as actions as well as words may be defamatory. A communication to the person defamed himself is not sufficient publication on which to found civil proceedings; though it is otherwise in the case of criminal prosecution, because such a communication may provoke a breach of the peace. See R. F. V. Heuston, Salmond on the Law of Torts 154 (17th ed. 1977); Black’s Law Dictionary, 9th ed., 2010 West, a Thomson business, page 1348. PER UCHECHUKWU ONYEMENAM, J.C.A.
TORT: ELEMENTS OF ESTABLISHING DEFAMATION
By the common law or the body of “Judge – made” law that have been developed through cases decided by the courts, for defamation action to be successful, three elements must be satisfied:
(a) The defamation was communicated by the defendant to a third person, other than the plaintiff (publication).
(b) The material identifies the plaintiff (identification); and
(c) The information/material contains matter that is defamatory regardless of whether the material was intentionally published or not (defamatory matter). PER UCHECHUKWU ONYEMENAM, J.C.A.
TORT: DIFFERENCE BETWEEN LIBEL AND SLANDER
In our judicial jurisprudence, imbedded in the distinction based on the form in which it is published, the known difference between libel and slander is that:
(1) Libel is not merely an actionable tort, but also a criminal offence, whereas slander is a civil injury only.
(2) Libel is in all cases actionable per se but slander is, save in special cases, actionable only on proof of actual damages.
See Salmond on the Law of Torts 139 (17th ed. 1977).
Outside the above, with regards to publication as it relates to defamation, there is no known distinction between libel and slander. In the tort of defamation therefore, publication is same whether, it is libel or slander. PER UCHECHUKWU ONYEMENAM, J.C.A.
EVIDENCE: EXCEPTION TO THE HEARSAY RULE
There is a well established exception or departure from the hearsay rule applying to cases in which the very fact in controversy is whether certain things were said or done and not as to whether these things were true or false, and in cases of defamation words or acts are admissible not as hearsay but as original evidence. See People v. Henry (1948) 36 Cal. App. 2d 785, 789, People v. Rosoon (1962) 202 Cal. App. 2d 480, 486 – 487. In Russell v. Geis (1967) 251-Cal. App. 2d 560, 571 – 572. It was held: “… In these situations the words themselves, written or oral, are ‘operative facts’ and an issue in the case is whether they were uttered or written”. See Mc Cormick on Evidence, p. 463.
In Rossell v. Geis (Supra) hearsay evidence was admitted against the defendant to prove the publication of defamation of the plaintiff originally published by defendant but republished by school children to Plaintiff’s child at elementary school, who then repeated it to the Plaintiff.
“Where the fact of statements having been made is in controversy, rather than the truth of their contents, such are excepted from the hearsay rule”. Mercado v. Hoefler (1961) 190 Cal. App 2d 12, 19, See also Cruey v. Ganneth Co. (1998) 64 Cal, App. 4th 356, 366.
This position in my humble opinion is not different from the position of the courts in Nigeria. “Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to established by evidence not the truth of the statement but the fact that it was said”. Per Fabiyi, in JAMB V. Nkeriruka (2008) Vol. 44 WRN 92.
To prove slander, a Plaintiff is not required to prove the truth of the slanderous words. The submission that he must be present when the slanderous words were spoken to make his evidence pass the hearsay test and admissible in evidence is not supported by the law. PER UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICES
MUHAMMAD LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
1. EMMANUEL BEKEE
2. ADOLPHUS BEKEE
3. KENNETH BEKEE Appellant(s)
AND
FRIDAY EBOM BEKEE Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the decision of Honourable Justice B. A. Georgewill of Rivers State High Court contained in the judgment delivered on the 25th October, 2010. In that judgment, the Court dismissed the Appellants claim in its entirety for lack of merit.
The Appellants by their Amended statement of claim dated 17th July, 2009 claimed against the Respondent as follows:-
“(a) N30,000,000.00 (Thirty Million Naira) only being general damages for defamation.
(b) Perpetual, injunction restraining defendant from further perpetrating any act of defamation against the claimants.
(c) Any other sum as the Honourable court may deem fit to award in the circumstances”.
The bone of the facts giving rise to the above claim can be gleaned from paragraph 6 of the Amended Statement of Claim at page 61 of the record.
Appellants who are three (3) brothers from Elelenwo in Obio/Akpor Local government Area of Rivers state sued the Respondent who is also of the same family on the basis that information got to them in the morning of 2nd January, 2007 that the Respondent went to Appellants’ maternal house, among others and alleged that they had canvassed the arrest of one Chinedu Bekee, the son of the Respondent and another Mr. Jonathan Alex Ehoro on the ground that they were cultists and that they were responsible for the killings that took place in December, 2006 in Elelenwo, Port Harcourt. The Respondent’s statement in respect of the aforementioned suit at the court below is hereunder stated as follows:
“Emmanuel Bekee and his brothers Adolphus Bekee and Kenneth Bekee reported some members of the community to the police and Rumuokwurusi people particularly Chinedu and Joe Ehoro as cultists who were responsible for the killings that took place in Elelenwo in December 2006, and that if anything happens to anybody in the community particularly my son Chinedu and Joe Ehoro, I will arrange for every member of their families to be wiped out and that nothing will remain of the members of their family”.
Following this alleged statement of the Respondent against the Appellants, 1st Appellant was removed from being the secretary of the community Landlord Association; 2nd Appellant was removed from the Eldership community and was never allowed in the meeting of the Elders; while 3rd Appellant who was the community Liaison officer in Amber Resources – one of the oil servicing companies which the community hosts was also removed by the community as the community Liaison officer in the company.
The Appellants by a letter written to the Respondent through their counsel demanded for an apology from the Respondent. When the Respondent failed to apologize, the Appellants sought redress in the court by filing the suit at the lower court.
The Respondent filed their defence denying uttering those words.
Rather the Respondent’s case is that he only reported the claimants at the house of Mr. Amadi Chinda on the ground that 1st and 2nd claimants have been accusing him and his children for instigating their removal as the community Liaison officer in Amber Resources Ltd and members of Landlord Association. That the claimants’ allegation is a mere fabrication as there was no exchange of words to the hearing of anybody. Also, that the Claimants were removed by the Ehoro family as their representatives in Amber Resources Ltd because of their notoriety and lack of respect for elders and constituted authorities and for disruption of family meetings.
The removal of the Claimants as the family liaison officer to Amber Resources was a family decision which has no bearing in this suit. The learned trial judge after hearing evidence and addresses of the respective counsel in the matter in a well considered judgment dismissed the Appellants claim as lacking in merit.
Dissatisfied with the Judgment of the lower court, the Appellant by a Notice of Appeal filed on 26th October, 2010 containing 4 (four) grounds appealed to this Court.
After briefs were duly filed and exchanged, the Appeal was taken on 8th November, 2012. Mr. I. A. Nwamadu adopted and relied on the Appellants, brief and reply brief filed on 13th April, 2011 and 20th May, 2011 respectively. In reply Mr. N. W. Nworgu adopted and relied on the Respondent’s brief filed on 4th May, 2011.
In the Appellants’ brief, prepared by Mr. Adu O. Sylvester, the following 3 (three) issues were distilled:
(a) “Whether the words spoken by Respondent are slanderous.
(b) Whether the slanderous words spoken must be altered in the presence of the persons slandered; and
(c) Whether the words spoken ought to have been printed and not reported”.
Meanwhile in the Respondent’s brief settled by Mr. Nworgu, 2 (two) issues were formulated for the hearing and determination of this Appeal. The 2 (two) issues are:
(a) “Whether the words complained of are capable of having defamatory meaning.
(b) Whether Appellants were in fact defamed by the Respondent”.
Before I adopt the issues which resolution will determine this appeal, I will like to comment on ground 3 (three) of the grounds of appeal. Ground 3 states:
“The learned trial Judge erred in law by holding that the words spoken ought to have been printed and not reported”.
Particulars of Error
The Court emphasizes (SIC) that Appellants did not show evidence of the slanderous words spoken in a printed form renders the statement not slanderous”.
In brief, ground 3 is not borne out of the record of appeal.
Throughout the length and breath of the lower court’s Judgment, particularly pages 175 – 180 where the learned trial Judge considered the importance of publication in defamation as it relates to libel and slander; he never found as per ground 3 nor made a statement in passing to the effect of ground 3. Ground 3 therefore, not stemming from the Judgment of the lower court is incompetent. It ought to be struck out and is accordingly struck out. See Ngige v. Obi (2006) 14 NWLR (pt. 999). An issue for determination which is based on incompetent ground of appeal goes to no issue. Such issue will be struck out as worthless. This is because; grounds of appeal are the legal pedestal for any attack on a Judgment. They give life to issues raised in the appeal for determination. See U.B.A. Plc v. A.C.B. (Nig) Ltd (2005) 12 NWLR (pt. 939) 232.
Issue 3 is distilled from ground 3. So issue 3 is formulated from an incompetent ground and as such incompetent, Issue 3 is accordingly struck out.
Having struck out ground 3 and the ensuing issue 3, the Appellants are left with 2 issues, which are issues 1 and 2. The resolution of the 2 issues as formulated by the Appellants will achieve the same result as the resolution of the 2 issues as formulated by the Respondent. However the issues as distilled by the Appellants are well legally couched and squares up with the grounds of appeal and aptly represent the grounds upon which the learned trial Judge dismissed the Appellants claim; See page 157 – 180. I shall therefore adopt the 2 issues formulated by the Appellants for the determination of this appeal.
In their Appellants’ brief of argument, Mr. Adu submitted on all their issues together as argument against the judgment.
The Appellants submitted that the trial court misapplied the evidence before it as the court’s findings negate the evidence on record. He contended that neither the pleadings, evidence nor addresses of counsel support the trial court’s Judgment at pages 172 – 174 of the Record; when he held that the alleged statement is not defamatory on ground that there is nothing bad in the claimants reporting the nephew of the Respondent to the police over cult activities and killings at Elelenwo Community. see N. B. C. I. v. Alfuir Minning Nig. Ltd (1993) 4 NWLR (pt. 287) 346.
The learned counsel for the Appellants further submitted that the Appellants pleaded and gave evidence to proof that the words complained of were spoken maliciously and achieved negative consequences against the Appellants. He argued that the Respondent’s defense that the report was an Ikwerre Customary means of reporting related issues cannot avail him since the custom was not proved nor is it such that the court should take judicial notice. See Ogba v. Akpede (1975) I NMLR 20.
In reply the learned counsel for the Respondent submitted that the trial court rightly dismissed the Appellants’ case because the said words have no defamatory meaning as known to law. He submitted on what a party must prove to succeed in a case of slander. Stressing that failure of the Appellants to state the language in which the defamatory words were uttered was fatal to their case of slander. He referred to Amahagwu v. Ngwokor (2004), ALL FWLR (pt. 219) 1091 at 1093; Yesufu v. Gbadamosi (1993) 6 NWLR (pt. 299) 363; Bakare v. Ishola (1959) WRNLR 106.
Learned counsel urged the court to uphold the dismissal of the case of the Appellants on issue 1.
In resolving this issue, I will start by briefly examining the tort of defamation especially slander. Defamation also called calumny, vilification, traducement, slander (for transitory statements) and libel (for written, broadcast or otherwise published words) – is the communication of statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative or inferior image. As such, any disparaging statement made about another, which is communicated or published, may well be a defamatory statement capable of giving rise to an action in libel or slander.
The distinction between libel and slander lies in their forms and remedies. Generally speaking slander is when a defamatory statement has been made orally, without justification. It is transitory. Libelous statements are those defamatory words that are recorded with some degree of permanence for instance recording words on tape, statements made by email or on on-line bulletin boards. So while slander is spoken defamation; libel is written or visual or broadcast defamation.
On remedies, in the case of libel, the victim can win damages even when he has not suffered financial loss as a result of the statement. On the otherhand, one who has been slandered must prove that actual damage has been suffered except where the slander is actionable per se.
Beyond what I have stated above, libel and slander share common defenses. Accordingly, anyone who is sued for defamation can raise any of the following defenses:
-That the alleged wrong doer was not the publisher of the statement;
-That the statement did not refer to the alleged victim;
-That the statement’s meaning was not defamatory;
-That the statement was true;
-That the statement was fair comment on a matter of public interest.
-That the statement was made in the heat of an argument.
Since the instant defamatory action is on slander, I will like to state what the Appellants needed to prove to succeed in their action. This will assist in coming to the right conclusion as to whether the trial court was right in its decision. As was submitted by the Respondent’s counsel, to succeed in their claim for slander, the Appellants were required in law to prove; the words of the slander, publication of the words by communicating same to a third party, the publication was false, damages, the very words on which the Appellants founded their claim, that is the very language the alleged defamatory words were spoken and where necessary its interpretation in English. See Amahagwu v. Ngwokor (2004) ALL FWLR (pt. 219) 1091 at 1093, Yesufu v. Gbadamosi (1993) 6 NWLR (pt. 299) 363.
It is the law, that the plaintiff must of necessity plead in verbatim in his statement of claim the exact words uttered by the defendant and in the language rendered, see Egbe v. Adefarasin (1987) 1 SC 1;
Okafor v. Ifeanyi (1979) 3 – 4 SC 99; Olaniyi v. Elero (2008) ALL FWLR (pt. 411) 975.
To prove their case, the Appellants at paragraph 6 of their amended statement of claim pleaded the defamatory words thus:
“Emmanuel Bekee and his brother Adolphus Bekee and Kenneth Bekee reported some members of the community to the police and Rumukwurushi people particularly Chinedu and Joe Ehoro as cultists who were responsible for the killings that took place in Elelenwo in December 2006, and that if anything happens to anybody in the community particularly my son Chinedu and Joe Ehoro, I will arrange for every member of their families to be wiped out and that nothing will remain of the members of their family”.
In reaction, the Respondent denied ever making the statement but only admitted sending distress message according to Ikwerre Custom.
Furthermore, learned counsel for the Respondent in his address submitted that it is the requirement of the law that the slanderous words must be expressly pleaded to enable the court look at it and give it the proper interpretation. He contended that the words contained in paragraph 6 of the Appellants’ amended statement of claim were in English Language and not in Ikwerre language which is the parties’ language. He relied on NEPA v. Inamenti (2002) FWLR (pt. 130) 1695 at 1699; Olaniyi v. Elaro (2008) ALL FWLR (pt. 411) 975 at 979.
The learned trial judge in his finding on this stated as follows:
“Now, in law all that a Claimant in an action for slander is required to be (SIC) are the exact words used by the Defendant which is alleged to be slanderous of the claimant and it is only where the words were alleged to have (SIC) uttered in a specific language that the Claimant would be required to set out the exact words in the specific language it was allegedly uttered and then to translate same into English language, the language of the Court”.
In Olaniyi v. Elaro (Supra) the Court puts it thus:
“…. A plaintiff must of necessity plead in verbatim in his statement of claim the exact words uttered or written by the Defendant and in the language rendered …” See also NEPA v. Inameti (supra)”. See pages 170 – 171, lines 26 – 33 and 1-5 respectively.
Having gone through the entire pleadings, there is no where the Appellants’ pleaded that the words complained of were uttered in Ikwerre language neither did the Respondent plead so. There is also nothing in the record flowing from the parties and their witnesses’ evidence which suggest that the alleged words were uttered in Ikwerre language. I therefore do not see the rationale of the Appellants’ counsel’s contention that the alleged words ought to have been pleaded in Ikwerre language before translating same to English language. Again the Respondent did not challenge the words as pleaded in paragraph 6 of the Appellants’ amended statement of claim for failure to be the exact words allegedly spoken by him. Parties are bound by their pleadings. They are not allowed in law to rely upon facts not pleaded, either by the respective parties or each party’s adversary. The learned Respondent’s counsel’s submission presupposes, that the words in paragraph 6 stated above is a paraphrase and not the words uttered by the Respondent and also that the words would have presumably been made in Ikwerre language. This submission apart from being presumptuous is not supported by pleadings and evidence. The submission is of no moment.
The cases of Olaniyi v. Elaro (Supra) and Ogbah v. Akpede relied on by the Respondent’s counsel do not support this submission either.
The import of these cases which represent the law is that as regards the language of slander; the law requires the exact words in the exact language of the slander to be pleaded. This is for the reason that:-
-The cause of action is not founded on the Plaintiffs impression of the slander but on those words as uttered;
-It may be known whether or not an innuendo is required in construing the words used or whether the statement is prima facie libelous without employing innuendo;
-Where the words were uttered in a foreign, strange or may be technical language then the need to ensure a proper translation by a competent person or an expert for the use of the Court.
I will like to note the case of Yesufu v. Gbadamosi (1993) 6 NWLR (pt. 299) 363 which is an earlier decision than the cases of NEPA v. Inameti (Supra); Olaniyi v. Elaro (Supra). This Court per Ubaezonu, JCA held “… the language employed by the Respondent in uttering the words complained of ought to be pleaded and given in evidence. There is no pleading or evidence whether the words were spoken in Yoruba, Hausa or French. The words were pleaded in English language. The Appellant however testified in Yoruba. His witness, 2nd PW2 also testified in Yoruba. They could therefore not reproduce the words complained of in English language in which the words are averred in the pleadings”. See page 372 paragraphs H – 373 paragraph A.
The fact of the instant case is different from that of Yesufu v. Gbadamosi (Supra). In the case at hand, there is also no pleading or evidence on the language the words were uttered and as I observed earlier none of the parties alleged that the words were spoken in any specific language outside the English language which it was pleaded. The language in which the words were spoken was not in issue. But unlike Yesufu’s case both the Appellants and Respondent gave evidence in English language which presupposes that the Respondent would have uttered the words in English. The basis for the decision in Yesufu’s case was the inability of the Appellant to testify in English. The principle followed in the said case remains that the exact words alleged to be slanderous must be pleaded in the language it was uttered.
In the instant case, since there is no record to the contrary that the words complained of by the Appellants were spoken in English language; I hold that the learned trial Judge was right when he held that the alleged slanderous words were properly pleaded by the Appellants in their amended statement of Claim.
Having so held, the next is to determine whether the learned trial Judge either misapplied or did not act on the basis of the evidence on record.
The guiding principles that a trial court must follow in evaluation of evidence remains: whether; the evidence is admissible, relevant, credible, conclusive and more probable than that given by the other party. See Mogaji v. Odofin (1978) 4 SC 91.
Let me also bring to remembrance the fact that, in a civil case; the court decides the case on the balance of probabilities or preponderance of evidence. By this the Court must weigh the evidence adduced by both sides on an adjudicatory justice weighing scale. The Court then watches to see which is heavier, not by the number of witnesses called by each party nor by the number of exhibits tendered by respective parties, but by the quality or probative value of the testimony of those witnesses and exhibits. See Fagbenro v. Arobadi (2006) 7 NWLR (pt. 978) 174.
Narrowing this down to the instant appeal which arose from an action for defamation, it is the court that decides in the end whether the words complained of are defamatory. In so deciding, the trial Judge:
(a) Considers the meaning, the words would convey to the ordinary person:
(b) Considers the circumstances in which the words were published; and
(c) Determines whether in such circumstances, a reasonable person would likely understand them in a defamatory sense. See Okafor v. Ifeanyi (2007) 12 NSCC 43.
In deciding whether the words complained of are defamatory, the trial court must bear in mind, the rule that information or complaint made to the police authorities cannot ground action for defamation. It is the duty of any citizen who knows or reasonably believes that a crime has been committed to assist the police with information. In the interest of the society therefore, any such information to the police or relevant authorities will be privileged. See P. G. S. S. Ikachi v. Igbudu (2005) 12 NWLR (pt. 940) 543.
The learned trial Judge was faced with the pleadings and evidence as per, paragraph 6 of the Appellants’ amended statement of claim earlier reproduced in this Judgment and the Respondent’s defence denying making the alleged slanderous statements. The learned trial Judge in trying to scale through the first hurdle of determining whether the words complained of by the Appellants had defamatory meaning. He referred to the pleadings of the Appellants, the evidence of PW1, PW2, PW3 and PW4 which he said he had carefully gone through and reviewed to find:
“I do not see and cannot fathom how the fact that the Claimants were alleged to have reported the son and nephew of the Defendant to Police over cult activities and killings in Elelenwo Community in December, 2006 could be said to be defamatory of the Claimants when that is a duty every reasonable citizen owes to the Society to report matters of criminal nature to the police for proper investigation”. See page 173 of record lines 4 – 10 of the record.
Relying on Byrne V. Dean (1937) 1 KB 818; where the Court held that a person who had made a report of the commission of a crime to the police even though against a fellow club member had done an honourable thing and generality of the public would rather approve and commend such 9 person than condemn him; the learned trial Judge held that in law the words complained of are not capable of a defamatory meaning.
The decision in Byrne v. Dean (Supra) represents the position in Nigeria. See P. G. S. S. Ikachi v. Igbudu (Supra); Umagba v. Ogbe (1996) 3 NWLR (pt. 468) 621. But the Appellants quarrel is that the issue is not that the Appellants reported anybody to the police as that was not in evidence or pleadings of the parties but that the Respondent went to community members at a Community meeting where he instigated the entire community against the Appellants with the alleged slanderous words.
Now to the pleadings and evidence the Appellants contended were either imported by the learned trial Judge or misapplied. Without guilt of repetition, I shall reproduce paragraph 6 of Appellants’ amended statement of claim. The said paragraph reads:
“Claimants aver that information got to them in the morning of 2nd January, 2007 that Defendant went to the Claimant’s maternal house, among others and alleged that Claimants had canvassed the arrest of Chinedu Bekee – the son of the Defendant, and another Mr. Jonathan Alex Ehoro on the ground that they were cultists and that they were responsible for the killings that took place in December, 2006 in Elelenwo Port Harcourt, the Defendant statement in respect of the aforementioned is hereafter stated as follows:
Emmanuel Bekee and his brothers Adolphus Bekee and Kenneth Bekee reported some members of the community to the police and Rumukwurushi people particularly Chinedu and Joe Ehoro as cultists who were responsible for the killings that took place in Elelenwo in December, 2006, and that if anything happens to anybody in the community particularly my son Chinedu and Joe Ehoro, I will arrange for every member of their families to be wiped out and that noting will remain of the members of their family”.
See pages 61 – 62 of the record. The Appellants at pages 104 – 122 of the record gave evidence in support of these pleadings. From the above reproduced paragraph 6, the purport is clear. The Respondent complained that the Appellants reported some members of the community to the police, his son and nephew inclusive for cultism and killings in Elelenwo in December, 2006. He threatened to wipe out Appellants’ family if anything happens to; particularly, his son and nephew. The learned trial Judge held that this said report allegedly made by the Appellants is a noble act worthy of commendation and as such the words conveying it cannot be capable of having a defamatory meaning. This is not outside the pleading in paragraph 6 nor the witnesses’ evidence in its support.
From the record before me, I do not see where and how the learned trial Judge in determining whether the alleged words were defamatory in meaning either departed from the pleadings or evidence on record or misapplied them. I therefore do not agree with the learned counsel for the Appellants that the learned trial Judge in his judgment, at pages 172 – 174 of the record while reaching the conclusion that the alleged words are not defamatory in meaning leaned on facts inapposite to the pleadings and evidence on record.
From the foregoing, I hold that the learned trial Judge was right when he held that the alleged slanderous words as stated in paragraph 6 of the Appellants’ amended statement of claim were not defamatory in meaning. Having so held the issue of proving defamation does not arise. The alleged slanderous words must be capable of having defamatory meaning before the exercise of proving defamation can be embarked upon.
However, in case I am wrong I shall proceed to resolve issue 2.
On whether the slanderous words spoken must be uttered in the presence of the persons slandered, the learned trial Judge relied on the dictionary meaning of “other than” in the meaning of publication and the case of Ogba v. Akpede (supra) to hold that the slanderous words must be spoken in the presence of those slandered.
The Appellants’ counsel argued that the case of Ogba v. Akpede does not support the learned trial Judge’s decision. He further referred to Schlumberger (Nig) Ltd v. Onah (2007) AFWLR (pt. 389) 1360 at 1362 relied on by the learned trial Judge to hold that in proving defamation, publication of the defamatory statement must be proven, to submit that the case is not relevant as it is on libel and not slander. He added that, “Libel is rooted in publication, whereas slander is defamation communicated in some non-permanent form by spoken words, or sounds”. He referred to Gregory v. Brunswick (1884) 6 M & G 953 at 959.
At this point, I refer to the meaning of defamation, the distinction of libel and slander and the proof of slander earlier examined in this Judgment. If I rightly understand the learned counsel for the Appellants’ submission well which I think I do, he is either trying to convey that publication does not apply in the case of slander or that publication in slander means a different thing from publication in libel.
From what I had said earlier, it is certain that defamation has two arms; which are libel and slander. It is also correct that a defamatory statement whether libel or slander has the following far reaching effects:-
(1) Lowering the Claimant in the estimation of right thinking members of the society generally; or
(2) To expose him to hatred, contempt or ridicule; or
(3) To cause other persons to shun or avoid him; or
(4) To discredit him in his office, trade or profession; or
(5) To injure his financial credit.
If the argument that slander does not require publication is correct, how then can one complain that words spoken against him has lowered him in the estimation of people; or exposed him to ridicule; or made people to avoid him or discredit him in his office and profession. Once there is no publication, then, words spoken no matter how untrue and malicious will remain private and will have no negative effect on one’s reputation. Defamation is the general term used where it is not necessary to distinguish between “slander” and “libel”. The fundamental distinction between both lies solely in the form in which the defamatory matter is published. Since slander is an arm of defamation, there can be no successful action for slander without the spoken words published to a third party. Accordingly, I hold that slander requires publication.
Following this then is the question; must the Claimant be present when the slanderous words are uttered? The case of Ogbah v. Akpede (Supra) is not an authority for or against the answer to this question. This issue was not before the Court. The court merely referred to Jibowu, C. J. in Bakare v. Ishola (1959) W.N.L.R. 106 at 107; where he held that words of heat or anger spoken during quarrel or prelude to a fight should only be regarded as vituperative or abusive words especially in Nigeria setting.
Having held that slander requires publication, then whether a person slandered must be present when the slanderous words are spoken will depend on the meaning of publication. The learned trial Judge at pages 176 – 180 after considering authorities on publication alongside the dictionary definition of “other than” came to the conclusion that since the law requires a Claimant, in an action for slander to plead and proof the exact words uttered in order to succeed against the defendant; then; the Claimant must of necessity be present at the time the slanderous words are uttered.
Publication means the act of making a defamatory statement known to any person or persons other than the Plaintiff himself. It is not required that there should be any publication in the popular sense of making a statement public. A private and confidential communication to a single individual is sufficient. Also it need not be published in the sense of being written or printed as actions as well as words may be defamatory. A communication to the person defamed himself is not sufficient publication on which to found civil proceedings; though it is otherwise in the case of criminal prosecution, because such a communication may provoke a breach of the peace. See R. F. V. Heuston, Salmond on the Law of Torts 154 (17th ed. 1977); Black’s Law Dictionary, 9th ed., 2010 West, a Thomson business, page 1348.
For the contention of the learned counsel for the Appellants that the learned trial Judge relied on cases on libel while seeking for the meaning of publication. I had earlier said defamation has two arms, libel and slander. I had also examined when a statement may be said to be defamatory. By the common law or the body of “Judge – made” law that have been developed through cases decided by the courts, for defamation action to be successful, three elements must be satisfied:
(a) The defamation was communicated by the defendant to a third person, other than the plaintiff (publication).
(b) The material identifies the plaintiff (identification); and
(c) The information/material contains matter that is defamatory regardless of whether the material was intentionally published or not (defamatory matter).
In our judicial jurisprudence, imbedded in the distinction based on the form in which it is published, the known difference between libel and slander is that:
(1) Libel is not merely an actionable tort, but also a criminal offence, whereas slander is a civil injury only.
(2) Libel is in all cases actionable per se but slander is, save in special cases, actionable only on proof of actual damages.
See Salmond on the Law of Torts 139 (17th ed. 1977).
Outside the above, with regards to publication as it relates to defamation, there is no known distinction between libel and slander. In the tort of defamation therefore, publication is same whether, it is libel or slander. I do not therefore agree with the learned counsel for the Appellants that the fact that the learned trial Judge in determining the meaning of publication; referred to Schlumberger (Nig) Ltd v. Onah (Supra); Nzeribe v. Anyim (Supra); Ogba v. Akpede (Supra); which cases he rightly contended relate to libel, arrived at wrong conclusion leading to a miscarriage of Justice. As I have said, whether in Libel or slander, the meaning of publication in defamatory matters is same; I hold that the learned trial Judge did not err when he relied on the above referred cases to arrive at a conclusion on the meaning of publication.
Having come to this conclusion, the next issue is, having regard to the dictionary meaning of “other than” in the case law meaning of publication, must the plaintiff be present when the defamatory statement is made. The learned trial Judge relying on New Webster’s dictionary meaning of the phrase “other than” found that “when construed in its ordinary meaning in relation to slander shows that the words complained of must be uttered in the presence of other person (third party) besides or in addition to the person allegedly slandered”.
See page 178 lines 25 – 28 of the record.
Following this, the learned trial Judge held “Having considered the decision relied upon by counsel to the respective parties and construed the meaning of the key phrase, “other than” as it relates slander, I completely agree with the submission of the counsel to the Defendant that the Claimants must be shown to be present at the time the words complained of were allegedly uttered by the Defendant against the claimants”. See page 179 of the record, lines 1-6.
The reasoning of the learned trial Judge is that holding otherwise will kick the door ajar for people to bring slanderous claim based on hearsay or mere gossips.
There is a well established exception or departure from the hearsay rule applying to cases in which the very fact in controversy is whether certain things were said or done and not as to whether these things were true or false, and in cases of defamation words or acts are admissible not as hearsay but as original evidence. See People v. Henry (1948) 36 Cal. App. 2d 785, 789, People v. Rosoon (1962) 202 Cal. App. 2d 480, 486 – 487. In Russell v. Geis (1967) 251-Cal. App. 2d 560, 571 – 572. It was held: “… In these situations the words themselves, written or oral, are ‘operative facts’ and an issue in the case is whether they were uttered or written”. See Mc Cormick on Evidence, p. 463.
In Rossell v. Geis (Supra) hearsay evidence was admitted against the defendant to prove the publication of defamation of the plaintiff originally published by defendant but republished by school children to Plaintiff’s child at elementary school, who then repeated it to the Plaintiff.
“Where the fact of statements having been made is in controversy, rather than the truth of their contents, such are excepted from the hearsay rule”. Mercado v. Hoefler (1961) 190 Cal. App 2d 12, 19, See also Cruey v. Ganneth Co. (1998) 64 Cal, App. 4th 356, 366.
This position in my humble opinion is not different from the position of the courts in Nigeria. “Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to established by evidence not the truth of the statement but the fact that it was said”. Per Fabiyi, in JAMB V. Nkeriruka (2008) Vol. 44 WRN 92.
To prove slander, a Plaintiff is not required to prove the truth of the slanderous words. The submission that he must be present when the slanderous words were spoken to make his evidence pass the hearsay test and admissible in evidence is not supported by the law. Accordingly, the reasoning of the learned trial Judge in support of his conclusion that a person defamed must be present when the slanderous words are uttered cannot therefore legally stand. I therefore do not agree with that.
From legal decisions referred to above, also by the meaning of defamation and its essential ingredients, the learned trial Judge with due respect construed the phrase “other than” out of con. By the dictionary meaning, it is unambiguous that outside of the person defamed, over and above the person defamed, beside the person defamed, in addition to the person defamed; the slanderous words must be communicated to a third party. There is nothing in the case law on the phrase “other than” or its dictionary meaning that denotes that the communication to the third party shall be in the presence of the person defamed. Once the Plaintiff in an action for slander is able to prove publication, identification and defamatory matter, where he was at the point of publication is of no moment.
Accordingly, I hold that the learned trial Judge was wrong when he held that the person allegedly slandered must be present when the slanderous words are communicated to a third party. Issue number 2 is resolved in favour of the Appellants.
Before I finally conclude, I will at this point comment on the Appellants’ reply brief, I have discountenanced it because it does not have any utilitarian value in the determination of this appeal. I also did not refer to the Respondent’s “Preliminary points” for the same reason as the Respondent did not file any Notice of Preliminary Objection. Secondly, is the fact that from the Notice of Appeal with its grounds at pages 181 – 185 of the record there is no prima facie proliferation?
Accordingly, since the Appellants’ reply is based on this Respondents’
“Preliminary Points” it is of no use to this appeal just like the “preliminary point”.
In all, having upheld the decision of the lower court that the words uttered as per paragraph 6 of the Appellants’ amended statement of claim has no defamatory meaning; this appeal is bound to fail. Appeal No. CA/PH/110/2011 hereby fails and is dismissed for lacking in merits. I uphold the decision of the lower court in Suit No; PHC/272/2007, dismissing the Appellants’ claim for damages on this point.
I make no order as to costs.
M. L. TSAMIYA, J.C.A.: I agree.
A. A. B. GUMEL, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother, Onyemenam, JCA. I agree that this appeal lacks merit and it ought to be dismissed. I adopt all the reasoning and conclusions of my learned brother. I have nothing more to add.
Appearances
I. A. NWAMADU HOLDING THE BRIEF OF ADU SYLVESTERFor Appellant
AND
N. W. NWORGUFor Respondent
